The Immigration Enforcement Paradox

In the past two weeks, the U.S. Department of Homeland Security announced two welcome immigration policy developments: limiting what category of people should be detained under federal law and shortening the time that close family members would have to be separated when applying for legal permanent resident status. But the department also released one deeply troubling set of immigration enforcement statistics showing that more than 400,000 immigrants were deported in FY 2012. Considered together, these developments highlight the incoherence in current national immigration policy and illustrate the need for a permanent fix for our nation’s immigration system—namely, creating a pathway to earned citizenship for the 11 million undocumented immigrants living here.

Positive development on prioritizing resources

Immigration and Customs Enforcement, one of the key law enforcement agencies charged with enforcing immigration law, announced on December 21 that it would no longer issue a “detainer” request to local police to hold someone identified as potentially undocumented unless that person has been charged with a serious crime or convicted of multiple misdemeanors. The announcement aligns with the agency’s evolving effort to apply so-called prosecutorial discretion: prioritizing criminals rather than long-settled and hardworking immigrants for detention and deportation.

The need for this policy has become especially acute given the broad and rapid expansion of the agency’s Secure Communities program over the past four years. This program requires local police to check the immigration status of everyone arrested, even for the most minor infractions. Despite its reassuring name, the implementation of the Secure Communities program has actually undermined the sense of security in many communities, which has necessitated the corrections contained in this new detainer policy. By effectively empowering local police to trigger the deportation of an immigrant for nothing more than a minor traffic offense, the Secure Communities program has created a perception among immigrants—including legal permanent residents and naturalized citizens—that local police are de facto immigration agents. In some places, police have abused this power by racially profiling individuals who appear foreign and making pretextual arrests, thereby giving proof to the claim that “driving while brown” is a crime in some jurisdictions.

Even in places where local enforcement practices are not intentionally pernicious, the Secure Communities program and federal and local immigration collaboration has caused immigrants to distrust and fear local police. That distrust makes all residents less safe by undermining community-policing policies that depend on the entire public’s cooperation such as reporting crimes and coming forward as witnesses. The long-overdue announcement that the Secure Communities program will no longer allow local police to use low-level arrests as a basis for initiating deportation proceedings should help restore the confidence and trust of immigrant communities in their police forces.

Importantly, this new policy should also help diminish the potential harm from the “papers please” provisions in effect in places such as Arizona through S.B. 1070 and Alabama through H.B. 56. Police in these states are allowed to ask anyone who they have a reasonable suspicion of being without immigration status for proof of legality. As the Supreme Court indicated in its landmark decision in June 2012 striking down much of Arizona’s law, however, it is up to the federal government to decide whether it will act on that information. The federal government has since said it will not act unless the person has been arrested for a serious offense or been convicted of a number of offenses.

New rule fosters family unification

On the heels of Immigration and Customs Enforcement’s refined detainer policy, U.S. Customs and Immigration Services, the agency that deals with immigration to the United States, published a final rule that will reduce the amount of time that immediate relatives (spouses and minor children) of U.S. citizens are separated from their families. Under current law, individuals who are eligible to get an immigrant visa or “green card” because their spouse or parent is a U.S. citizen, but who have been in the United States illegally for more than six months, must first leave the country to apply for a “hardship waiver” before receiving their green card. Because of long and unpredictable processing times, having to leave the country can, in many cases, lead to months or even years of separation from the sponsoring family member. Uncertainty about whether a waiver will be granted or even how long the family might be separated acts as a disincentive for people to complete the process of becoming a legal permanent resident and instead keeps otherwise eligible people in unauthorized status.

This new family-unity rule, which was announced Wednesday and takes effect on March 4, 2013, does not change the standards or requirements for U.S. citizens seeking visas for their family members. But it allows qualified applicants to apply and wait for the waiver while they are still in the United States instead of leaving first, removing the uncertainty and long separation times. In short, the new rule is another important step toward common-sense immigration policies that reflect the realities of mixed-status American families.

Band-aid solutions rather than curative reform

The new detainer policy and the family unity rule are smart initiatives that should be applauded, but they are treating symptoms of the problem rather than root causes. The Obama administration has had to adopt these new policies because our dysfunctional immigration system has led to more than 11 million undocumented immigrants living in the United States, two-thirds of whom have been here for more than a decade and live in families with spouses, children, and parents who are U.S. citizens.

Year after year, rather than dealing realistically with the undocumented population, Congress has ordered the construction of a behemoth enforcement agency under the delusional belief that we could enforce our way to a workable system. President Barack Obama inherited this enforcement machine, and he is now on the hook for having deported 1.5 million additional immigrants, including a total of 409,849 in fiscal year 2012—the highest number of immigrants ever removed from the United States in a single year.

To be sure, everyone will agree that some of the individuals who were deported should have been deported. The Department of Homeland Security notes that among their ranks were some truly dangerous criminals, including 1,215 people convicted of homicide, 5,557 people convicted of sexual offenses, and 40,448 people convicted of drug-related crimes. But there were also hundreds of thousands of people who have not committed any crime other than the civil offense of being in the country without legal status. These are the very people whom the president has rightly argued should be provided an opportunity to earn legal status and eventually citizenship.

Herein lies the president’s immigration paradox: His constitutional role as chief enforcer of federal laws flies directly in the face of what he believes those laws should provide. The recently announced initiatives reflect an effort by the administration to minimize this incoherence between practice and principle, as do prior actions such as the courageous Deferred Action for Childhood Arrivals directive, which used inherent executive authority to explicitly protect DREAM Act-eligible youth, undocumented immigrants who are Americans in every way but their papers, from deportation.

Still, the senseless human toll and economic harm resulting from the continued expansion of immigration enforcement without a corresponding change in the laws cannot be corrected by administrative policy alone, and it can no longer be defended merely by reference to the rule of law. Here are three basic reasons why Congress must pass comprehensive reform.

Families matter. Permanently separating family members simply because of a lack of immigration status—without, for example, an actual criminal conviction—is un-American. As Seth Freed Wessler has estimated, more than 200,000 parents of children who are U.S. citizens were deported between 2010 and 2012. This accounted for nearly 23 percent of all deportations. Of the roughly 400,000 people deported in 2011, more than half of them were not criminals.

Workers matter. All workers suffer when an underground labor market is allowed to worsen wages and working conditions. Bringing undocumented workers off the economic sidelines and into the legal fold raises working standards and increases economic growth and productivity. This is reflected in a broad range of research from progressive and conservative think tanks, as well as from government agencies.

Taxpayer dollars matter. Finally, it is fiscally counterproductive and irrational to spend literally billions of dollars attempting to deport people who have committed no crimes, who are otherwise contributing to America’s prosperity, and who would contribute more if provided legal status. The government, however, spent a total of $17.1 billion on Immigration and Customs Enforcement and Customs and Border Patrol, the two agencies charged with immigration enforcement, in FY 2012.

The decision to draw a brighter line between federal authorities and local police officers in the enforcement of immigration law, coupled with the posting of a final rule that will help families comply with the law without unnecessary separation, shows that the Obama administration is trying to rationalize a rigid and flawed immigration system. But only a legislative overhaul that provides a pathway to legal status for the millions of undocumented immigrants—already Americans in everything but paperwork—can align our enforcement policies with our national economic and social interests. If Congress were to legalize these millions of individuals, it would grow the economy, promote family stability, and save taxpayer dollars.

Marshall Fitz is Director of Immigration Policy at the Center for American Progress.